California’s Legal Options for Childhood Sexual Abuse Survivors

The California Child Victims Act expands the rights of those who are ready to take legal action against abuse perpetrators and others.

California is one of a number of states that have taken special steps to protect the legal options of survivors of childhood sexual abuse and assault. Thanks to the California Child Victims Act (also known as Assembly Bill 218), signed into law in October 2019, survivors now have more rights when it comes to filing a civil lawsuit against perpetrators of childhood sexual abuse, and against the entities and institutions that might bear legal responsibility for harm resulting from the abuse.

In this article, we'll explain the key provisions of the California Child Victims Act, including:

  • changes to the statute of limitations lawsuit-filing timeline for childhood sexual abuse lawsuits
  • enhanced "damages" rules for childhood sexual abuse/assault lawsuits that involve "cover up" conduct by a defendant
  • a procedural hurdle that certain potential plaintiffs (and their attorneys) must clear, and
  • a three-year "lookback window" that revives the right to sue for survivors who lost that option.

California's Statute of Limitations for Childhood Sexual Assault Lawsuits

In the context of a civil court case, a "statute of limitations" is a law that puts a time limit on the right to file a lawsuit and ask a court for a remedy for some type of wrong. If the statute of limitations that applies to the type of lawsuit you want to file has run, the court will almost certainly refuse to consider your case, unless a rare exception applies to effectively extend the deadline.

Before California lawmakers passed the Child Victims Act, the standard California statute of limitations for civil lawsuits over sexual abuse that occurred when the plaintiff was a minor provided that the case must be filed by the later of the following dates:

  • within 8 years of the plaintiff turning 18 (by the time the plaintiff turned 26, in other words), or
  • within 3 years of the date on which the plaintiff discovered (or reasonably should have discovered in the eyes of the law) that any psychological injury or illness that occurred after the plaintiff turned 18 was caused by sexual abuse.

The California Child Victims Act loosens these restrictions in an effort to "unlock the courthouse door" for survivors of childhood sexual abuse. Now, the time limit for filing a lawsuit over childhood sexual assault is increased to 22 years from the date the plaintiff attains the age of majority (by the time the plaintiff turns 40, in other words) or within 5 years of the date on which the plaintiff discovers (or should have discovered, in the eyes of the law) that psychological harm suffered after the age of majority was caused by sexual assault, whichever is later.

Expanding the "Abuse" Definition and the "Duty of Care"

The California Child Victims Act changes the definition of "childhood sexual abuse" to "childhood sexual assault," and clearly delineates the potential civil liability of an entity that owed a "duty of care" to the plaintiff. This is the portion of the law that spells out an entity's legal responsibility to protect minors from abuse, and which can be used to hold churches, schools, care centers, and other institutions and organizations liable for the wrongdoing of clergy, employees, volunteers, and others.

Specifically, the law places institutions and organizations on the legal hook when they:

  • know, have reason to know, or are on notice of any misconduct creating a risk that an employee or other "agent" will commit sexual assault against a child, and
  • fail to take reasonable steps (or to implement reasonable safeguards) to prevent acts of sexual assault against a child.

Notably, AB 218 requires more than just nominal action from these institutions when it comes to these "reasonable steps" and "safeguards" aimed at preventing or avoiding incidents of sexual assault by employees and other representatives who work with or around children. The law specifies that "providing or requiring counseling is not sufficient, in and of itself, to constitute a reasonable step or reasonable safeguard." These organizations should do more, and now the law requires them to do more.

A "Cover Up" Can Triple a Survivor's "Damages"

If a defendant in a childhood sexual abuse lawsuit is found to have engaged in any sort of "cover up" behavior in connection with the survivor's harm, that defendant can be liable for "treble" damages. That means the defendant (whether an individual or institution) could be ordered to pay three times the compensable losses that resulted from its role in causing or contributing to the abuse. These damages can include the cost of the survivor's health care treatment and counseling made necessary by the abuse, the financial impact of the survivor's inability to work, and the survivor's "pain and suffering" and other subjective impacts of the abuse.

The California Child Victims Act defines a "cover up" very broadly, describing it as any "concerted effort to hide evidence relating to childhood sexual assault." So that means if a church, school, care center, or some other organization engaged in any purposeful action meant to conceal the abuse—including trying to dissuade an accuser from coming forward, or failing to fulfill a legal requirement to report any instance of abuse—a survivor might be entitled to recover three times the amount of their compensable losses resulting from that defendant's failure to fulfill its legal (let alone moral) obligations.

The "Certificate of Merit" Requirement Adds a Hurdle for Plaintiffs

While AB 218 is mostly plaintiff-friendly, it also creates a procedural hurdle for a childhood sexual abuse lawsuit to clear if the plaintiff is 40 years of age or older. In that situation, alongside the complaint (that's the document that starts the lawsuit and spells out the plaintiff's allegations), a "certificate of merit" must be filed. In this document:

  • the plaintiff's attorney must declare, under oath, that they have reviewed the facts of the case, have consulted with at least one qualified mental health practitioner, and "concluded on the basis of that review and consultation" that the plaintiff's child sexual assault lawsuit is "meritorious," and
  • a licensed mental health practitioner (who has never treated the plaintiff) must declare, also under oath, that they have interviewed the plaintiff and formulated a professional opinion that "there is a reasonable basis to believe that the plaintiff had been subject to childhood sexual abuse."

If filing the certificate of merit would be unreasonable in light of an impending lawsuit-filing deadline (the statute of limitations is running soon, in other words), then the plaintiff's attorney must make a sworn declaration saying so, and a compliant certificate of merit must be filed within 60 days of the filing of the lawsuit.

California Opens a "Lookback Window" for Sexual Abuse Lawsuits

Perhaps the most impactful provision of AB 218 (especially for potential plaintiffs whose opportunity to file a lawsuit seemingly passed) is the creation of a so-called "lookback window," which revives the lawsuit-filing rights of many childhood sexual abuse survivors whose options were severely restricted by an expired statute of limitations.

Now, for a designated three-year period, survivors of childhood sexual assault and abuse in California—regardless of their age and when the assault occurred (or when resulting psychological harm was discovered)—can file a civil lawsuit against the offender and any other person or entity who might bear legal responsibility (with some exceptions). The three year window opened on January 1, 2020, and closes on January 1, 2023.

This is the second such action by California lawmakers. The first "lookback window" opened for a one-year period back in 2003, and resulted in the filing of around 1,000 sexual abuse lawsuits against the Catholic church and other institutions.

What About Government Liability for Childhood Sexual Abuse?

When a government entity or employee might be liable for a potential plaintiff's harm in California, state law typically requires adherence to a separate claim procedure set out in the California Tort Claims Act, which is much stricter when it comes to filing deadlines, compared with the civil court process.

The California Child Victims Act ensures that a survivor's options for seeking justice for childhood sexual abuse aren't restricted by the California Tort Claims Act's deadlines, by mandating that the civil statute of limitations will apply even when legal responsibility for harm from sexual assault lies with a government agency (i.e. a school district).

What About Criminal Cases Over Childhood Sexual Abuse in California?

The statute of limitations rules we've discussed here only apply to civil lawsuits brought by survivors of childhood sexual abuse and assault. A different statute of limitations applies to criminal proceedings, which are entirely separate from the civil lawsuit process, even when the same conduct or set of circumstances is the basis for both types of legal action.

In California, a number of different criminal statutes of limitations might apply to an incident of child sexual abuse or assault. For example, for some crimes (included aggravated sexual assault of a minor), no statute of limitations applies, meaning criminal charges may be brought at any time, even decades after the offense. In other instances, prosecution is possible until the survivor turns 40 years of age, but a stricter deadline might apply depending on what specific crime is charged. Get more details on pressing criminal charges over childhood sexual abuse, and California statutes of limitations for criminal law cases.

If you're interested in learning more about AB 218 and how it might affect your options for seeking justice over childhood sexual abuse, it might make sense to discuss the specifics of your situation with an experienced California attorney. An initial consultation is usually free, and is always confidential. Learn more about finding the right attorney for you, and how a lawyer can help.

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